Civil Liberties of Students In Higher Education

By Daniel Weisman

Students in higher education face a variety of challenges to their civil
liberties, through such mechanisms as censorship, thought and behavior codes,
private and arbitrary disciplinary procedures, and release of records to
governmental authorities and corporations. This paper reviews students' legal
rights in private and public schools, some typical civil rights challenges
experienced by students, and recent court cases. Findings include: the freedoms
of speech, press and assembly are violated most often (e.g., campus hate
speech codes) when students take unpopular or "politically incorrect" positions;
when violations are challenged, or made public, the college or university
usually backs down or loses in court; the courts have not been as supportive of
privacy rights as they have of speech and due process rights; while private
schools are not literally subject to constitutional requirements, the courts
have held them to similar standards for other reasons; and for the most part,
the use of Internet resources does not change student rights, but there are
some differences. The paper concludes with some suggestions for students and
university administrators.

More than 15 million students are enrolled in 3,600 colleges and universities
across the country (U.S. Bureau of the Census, 2002; Foundation for Individual
Rights in Education [FIRE], 2002). In addition to their studies and other
responsibilities, they face a variety of challenges to their civil liberties,
including but not limited to their rights to speech, press, assembly, privacy
and due process (Kors and Silverglate, 1998; FIRE, 2002). In the very
environments in which they and their families might reasonably expect to find
fairness, intellectual respect, expansive freedom of inquiry and open
exploration of the human condition, students often encounter censorship, thought
and behavior codes, private and arbitrary disciplinary procedures, and release
of records to governmental authorities and corporations.

This paper will begin with a review of the legal bases for most student
rights that come under attack by college and university administrators, examine
some of the more prevalent civil rights challenges experienced by students
over the last twenty years, explain how the courts have responded when students
sought redress over rights violations, and suggest some alternative approaches
to balancing individual rights and the interests of institutions of higher
education.

The Bases for Student Rights that are Often Violated

While there is no singular body of law delineating the rights of students,
there are several laws and traditional practices that guarantee basic liberties
to students who attend either public or private colleges or universities. For
students in public institutions of higher education, the U.S. Constitution,
especially the Bill of Rights and the Fourteenth Amendment, describe the limits
of governmental actions with regard to individuals. For example, freedoms of
speech, assembly, and religion (free exercise and establishment) are contained
within the First Amendment. The Fifth and Fourteenth Amendments define due
process and equal protection.

Besides the U.S. Constitution, the U.S. Congress has enacted legislation
protecting the rights of particularly vulnerable people. For example, the Family
Rights and Privacy Act of 1974 (FERPA) protects the privacy of some student
records, and the Civil Rights Act of 1964 (and subsequent amendments) addresses
workplace discrimination, unequal treatment, harassment and other abuses.
Often, these laws apply to both private and public institutions, albeit
differently, extending the umbrella of protection beyond public colleges.

States have the power to expand (but not reduce) civil rights and liberties
of individuals, so state constitutions, statutes and tort law may define student
rights beyond those protected federally. At the local level, public and private
campuses may be guided by collective bargaining agreements (with faculty, staff
and, more recently, graduate students employed as research or teaching
assistants), and/or institutional mission statements and other literature
describing the philosophy of the college or university (e.g., student
handbook) and amounting to a binding contract.

These sources of student rights, like much of the U.S. legal system, are
constantly shifting for several reasons. The concept of individual rights is
dynamic and evolves as our society grows (Walker, 1990, pp.6-7). Events such as
the recent terrorist attacks create new sensitivities, reactions, fears and,
ultimately, policies at both private and public levels. The U.S. population is
constantly changing, placing burdens on colleges to be appropriate and
responsive to all student populations. Technologies create new opportunities
for educational inquiry as well as rights abuses (e.g., the Internet). The U.S.
legal system is fragmented to the extent that laws and regulations are made at
nine different levels: administrative, legislative and judicial branches at
each of three locales: local, state and federal. It is also a system that
continually reshapes interpretations of the law on the basis of situation-specific
case decisions. So the same Constitutional phrase can be applied differently
by the courts in response to the minute details of individual lawsuits.

The result is a dynamic system that continually refines and redefines the law
through legislative, administrative and judicial processes. What is certain is
that most of the issues that affect higher education, as well as other arenas
of human enterprise, continue to evolve, with the consequence that student,
faculty, staff and institutional rights also shift over time.

Students' Civil Liberties at Risk and Court Actions

As stated above, this discussion will focus on student civil liberties
issues that have received the most attention in recent years either in the
courts or in other arenas of public policy. These issues fall into categories
of speech (including press and assembly), due process and privacy. Following
are some illustrative recent cases for each of the three categories.

Speech (Press and Assembly)

A common denominator among speech cases is an episode of offensive expression
by a member of the campus community. The statements are usually vulgar,
insensitive, hurtful and widely repudiated. But the issue here is not the
message but the principle of free expression on both public and private
campuses. When the constitutional (public colleges) and contractual (private
colleges) right to speech comes into conflict with the sensitivities of college
administrators, the First Amendment often is discarded and the speaker's First
Amendments rights are violated.

Student newspapers, published both on and off campus, have been confiscated
by college officials, who object to content, veracity or political correctness
of messages or ads. In some cases, students have "stolen" free student
newspapers that were stacked up in trafficked areas of the campus, with no
response from college officials. A recent federal court case involved a
student yearbook confiscated by officials at Kentucky State University,
because the students included a current events section and made the cover
purple instead of KSU's colors (Kincaid v. Gibson). In that case, decided
in 2001, a federal appeals court ruled that KSU violated students' rights:
"We will not sanction a reading of the First Amendment that permits
government officials to censor expression in a limited public forum in
order to coerce speech that pleases the government," according to Judge R.
Guy Cole, writing for the majority (Student Press Law Center [SPLC], 2001).

The freedom of assembly is challenged sometimes, especially when the student
group embraces an unpopular cause. In April, 2002, for example, 41 students were
arrested and charged with trespassing at the University of California at
Berkeley for holding a pro-Palestinian rally. The student group, Students for
Justice in Palestine, was also suspended. The suspension was later rescinded,
but the university's actions prompted the ACLU to comment: "The University's
reaction to the sit-in has a chilling effect on the students' right to free
speech, especially at a time when freedom of expression is so critical to our
democracy. Expressing ideas that are controversial and unpopular must be
vigilantly protected. The important First Amendment principles at stake do not
permit administrative action that appears to be unprecedented and to make an
example of this controversial group" (American Civil Liberties Union [ACLU],
2002a).

Sometimes universities seek to restrict student speech as an easy solution to
difficult public image problems. In May, 2002, a federal district court ruled
that the University of Illinois "violated the free speech rights of students
and faculty when they required 'pre-clearance' for any statements about the
school's controversial use of Native American Chief Illiniwek as a mascot"
(ACLU, 2002b). An ACLU press release assessed the implications of the decision:
"Citing a 1977 case from the U.S. Court of Appeals for the Eighth Circuit, the
decision notes, 'it is axiomatic that the First Amendment must flourish as much
in the academic setting as anywhere else. To invoke censorship in an academic
environment is hardly the recognition of a healthy democratic society'" (ACLU,
2002b).

The landmark case that is widely cited as the foundation of students' rights
was Tinker v. Des Moines Independent Community School District (393 US 503
[1969]). Several students were suspended from a public high school for wearing
black armbands in protest of the Vietnam War. The school system defended its
action by expressing fear that the demonstration would spark student unrest.
The United States Supreme Court found that students do not "shed their
constitutional rights to freedom of speech or expression at the schoolhouse
gate," and school officials may not punish or prohibit student speech unless
they can clearly demonstrate that it will result in a material and substantial
disruption of normal school activities or invades the rights of others. "In
order for the State in the person of school officials to justify prohibition
of a particular expression of opinion, it must be able to show that its action
was caused by something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint," wrote Justice
Abe Fortas for the majority. "In our system, state-operated schools may not
be enclaves of totalitarianism. School officials do not possess absolute
authority over their students. Students in school as well as out of school
are 'persons' under our Constitution." [Quotes from the decision.] Subsequent
court decisions asserting college students' rights to free speech frequently
have referenced Tinker.

Private colleges are not immune from free speech issues. According to the
Student Press Law Center (SPLC), while private institutions usually are not
required to conform with constitutional protections, other factors may come
into play, notably, the schools' own rules, guidelines, literature and catalogs
(SPLC, 1995). An example is a case at Princeton University, which began in
April, 1978, when a non-student (Chris Schmid), who was distributing literature
from the U.S. Labor Party, was arrested and prosecuted for trespassing. In
state court, Princeton University argued that its "institutional academic
freedom," i.e., power to control its own environment, was sufficient grounds to
eject Mr. Schmid and to sustain trespassing charges. Schmid countered that his
free speech and assembly rights (as enumerated in both the U.S. and N.J.
Constitutions) were violated by the private institution. The court eventually
sided with Schmid (State v. Schmid), but not on Constitutional grounds, but
because Princeton's own literature portrayed itself as an open forum (e.g.,
from Princeton's regulations: "Free speech and peaceable assembly are basic
requirements of the University as a center for free inquiry and the search for
knowledge and insight."), so it had violated its own contract with its students
and its community (Kors and Silverglate, 1988, pp. 59-63).

The concept of "institutional academic freedom" dates back to 1940, when the
American Association of University Professors (AAUP) issued its Statement of
Principles on Academic Freedom and Tenure (AAUP, 2002), delineating both
faculty and institutional academic freedoms. That document was subsequently
legitimized by the U.S. Supreme Court's McCarthy era rejections of loyalty
oaths in public institutions (Kors and Silverglate, 1998, pp. 50-59), and
has served as a guide for subsequent cases in which faculty and institutional
rights have come into conflict.

While some ambiguity regarding academic freedom remains unresolved (AAUP,
2002), the courts have viewed institutional academic freedom as pertaining
narrowly to the school's central mission and not as a basis for imposing values
on students, with the exception of private (particularly religious) colleges
that widely publicize their philosophies in unambiguous terms (Kors and
Silverglate, 1998, pp. 52-57). It should be noted that faculty academic freedom
was broadly defined in the AAUP's 1940 document (AAUP, 2002. pp. 1-7), and
the courts have been more reluctant to set limits on professors' speech than
on institutional freedoms, but there are limits on both (Kors and Silverglate,
1998, p. 277). To date, no clear court decision has clarified guides for
resolving conflicts between institutional and individual academic freedoms,
except for the consistently clear message that "institutional academic freedom
supplements, but does not supplant, the First Amendment freedom right of
professors" (AAUP, 2002, p. 8).

Student academic freedom has not been specifically defined in the AAUP's
1940 statement or in subsequent case law. But the principles set forth in the
AAUP's documents, beginning in 1940 and continuing through the present time,
contain widely recognized implications for the implied existence of corollary
student academic freedoms, including free expression and freedom to seek truth,
disagree and learn (Kors and Silverglate, 1998, p. 52-53).

Speech on the Internet

Over the last two decades, the Internet has become an essential tool for
people involved in higher education. For students and faculty, it is both a
research tool and a platform for self-expression. It is also a connection to
the outside world, and vice versa. For the most part, the principles guiding
free speech and freedom of the press apply to the Internet. But, because the
Internet is electronic, digital, almost boundless and there is no control over
sources or destinations of information, some special issues arise, some as yet
unresolved.

The AAUP (1997) identified two areas which may need to be clarified in the
future, both involving sexually explicit materials. First, while university
libraries are not required to obtain every book requested by faculty and/or
students, there is likely to be discussion about the limits that institutions
may want to establish with regard to electronic materials, especially sexually
explicit content. At least one federal court has upheld a public university's
restrictions of such materials. Second, distribution of print materials is easier
to control than posting of electronic products. Of particular concern is
avoiding Internet posting of child pornography (AAUP, 1997).

As is the case of speech, content-neutral criteria should guide schools'
approaches to managing their interactions with the Internet. Considerations
such as time of use and amount of time on line, if applied equitably, are
acceptable. But user codes with vague terms or which ban content run afoul of
the First Amendment, as do speech codes (AAUP, 1997; SPLC, 1998a). Student
press rights on the Internet are similar to those in place for print publications.
For example, administrators in public colleges cannot censor or restrict
student newspapers' online publication. On the other hand, colleges and
universities are not obligated to link student sites to their websites as
long as the criteria are content-neutral (SPLC, 1998a).

Internet service providers (ISPs) have been held not liable for their
subscribers' messages, so colleges cannot claim they are liable for libelous
student messages (SPLC, 1998b). However, students themselves and/or their
publications face more exposure to libel cases when they publish electronically
because the product can reach more people (SPLC, 1998b). So far, copyright
laws apply to the Internet about as they do to print media, so materials should
be reproduced with the owners' permission (SPLC, 1998b).

For private colleges and universities, the issues are similar to those
discussed in the speech and press sections: these schools are not bound by
constitutional guidelines, but they may be committed to speech, press and
expression protections for students because of their literature or procedures,
or various federal and state laws (SPLC, 1998a).

Privacy issues and the Internet will be reviewed in the privacy section.

Hate Speech and Speech Codes

Over the last two decades of the 20th Century, many if not most college
campuses have adopted codes or guidelines limiting student speech (Associated
Press, 2002). Campus speech codes are usually taken in the interest of protecting
minority, female and gay students from harassment or discomforting comments by
other students, often in response to a precipitating expression or act with
ethnic or racial content (Calleros, 1997). Precise numbers of campuses with hate
speech codes are unknown but a survey conducted in 1993 by the National
Association of Student Personnel Administrators found that 47.5% of responding
institutions in the region sampled (seven eastern states) had codes in place
and another 18.7% were considering adopting codes (Palmer et al., 1997, p.
117).

Campus hate speech codes are usually defended in court (with very little
success) on the basis of a 1942 U.S. Supreme Court ruling (Chaplinsky v. New
Hampshire), in which the Court established the "fighting words" exception to
the First Amendment, and the "hostile environment" concept authored in 1985 by
the Equal Employment Opportunity Commission, on the basis of the 1964 Civil
Rights Act (Namazi and Cahill, 1994). While the "fighting words" doctrine has
declined as a legal justification for speech codes, proponents continue to look
for defenses. Namazi and Cahill (1994) suggested constructing an equal
opportunity argument, similar to the approach used successfully in the Cleveland
school voucher case this year. This approach would characterize hate speech
as jeopardizing equal educational opportunity by putting targeted students at
a serious disadvantage in classrooms and other campus locations. Equal
opportunity enjoys higher status in the Court than fighting words and might
stand up to the Court's concern for free speech.

To date, though, the fighting words doctrine is the most current court-tested
rationale for campus speech codes. Fighting words are those that "by their
very utterance inflict injury or tend to excite an immediate breach of the
peace" (Kors and Silverglate, 1998, p. 40). A related doctrine, "group
defamation," was coined by the Supreme Court in a 1952 decision, Beauhamais
v. Illinois, which forbade expression in public places which "exposes the
citizens of any race, color, creed or religion to contempt, derision, or
obloquy or which is productive of breach of the peace or riots" (Kors and
Silverglate, 1998, p. 41).

Almost immediately, the Court began diluting these doctrines and has been
doing so consistently since they were first expounded. As campus speech code
cases are challenged in the federal courts, the codes are struck down even
though they are defended on the bases of "fighting words" and other doctrines
that would limit free speech (ACLU, 1996; Kors and Silverglate, 1998, pp. 82-86).
The courts have been more tolerant of speech limitations that are "content
neutral," that is they apply equally to all groups and messages, and they
curtail speech for everyone equally at specified times, places and circumstances.
For example, loud speech between Midnight and 7 AM may be banned on campus
so everyone can sleep undisturbed (Kors and Silverglate, 1998, p. 47).

The requirement that workplaces must avoid being hostile environments,
particularly regarding race and gender, began to be extended to college and
university campuses in the late 1980s and has yet to be reviewed by the Supreme
Court. However, lower federal courts, citing previous Supreme Court decisions,
have consistently ruled that the free speech provisions of the First Amendment
take precedence over regulations issued by a federal agency. In 1991, for example,
the federal district court in eastern Wisconsin ruled (UWM Post, Inc. et al. v.
Board of Regents of the University of Wisconsin) that the University of Wisconsin's
speech code violated the First Amendment, rejecting the hostile environment
defense and noting that the EEOC regulations apply to workplaces, not public
educational settings (Kors and Silverglate, 1998, pp. 88-91; Palmer et al.,
1997, p. 113).

The Supreme Court has provided some help for universities which are interested
in balancing collegial environments and free speech. In R.A.V. v. St. Paul
(1992), the Court ruled that a city ordinance prohibiting visual messages on
public or private property that would arouse negative responses on the basis
of race, ethnicity or gender was unconstitutional because the law addressed
particular content. In Wisconsin v. Mitchell (1993), the Court ruled that a
state law enhancing penalties for crimes that were motivated by bias was
constitutional (Palmer et al., 1997, pp. 114-115). While neither case emanated
from a college campus, both have implications for how the Court might assess
campus codes, yet a survey of college administrators soon after those decisions
found that most were not aware of the decisions and even among those who knew
of the cases, less than half would apply them to formulation or revision their
own campus codes (Palmer et al., 1997, pp. 117-118).

There is a distinction between speech and conduct. The former has been protected
in federal and state courts, even on some private campuses, when the consequence
is essentially hurt feelings, discomfort or embarrassment. The latter is
subject to regulation when it "targets a particular individual" and "interferes
with a student's ability to exercise his or her right to participate in the
life of the university" (ACLU, 1996). Acts of violence, destruction of property,
invasion of privacy and intimidation (e.g., taunting, threatening phone calls)
should be punishable under appropriate statutes addressing behavioral actions
(ACLU, 1996). But with regard to speech, even tasteless and obnoxious speech,
there is no right not to be offended.

Due Process

Campus speech codes usually result in violations of students' rights to due
process in disciplinary proceedings. Typical scenarios involve an offensive
statement or an action that is interpreted by campus officials and/or purported
victims as offensive, the transgressor being informed by an advisor or other
official that he (gender specificity deliberate) has been accused of violating
the speech or behavioral code, a closed hearing in which charges are explained
and the student is invited to prove his innocence, and the meting out of a
disciplinary decision, usually ranging from an official reprimand to suspension
or expulsion. There are several civil liberties violations in these proceedings
and the courts have repeatedly overturned campus disciplinary punishments.

A well-publicized example of due process and speech codes occurred at the
University of Wisconsin in 1987, where a fraternity held a mock slave auction.
Under a speech code which was drafted with previous court decisions in mind,
students were disciplined for intentionally creating an environment that was
hostile towards education. University officials (including then-Chancellor
Donna Shalala) attempted to build the code on the basis of institutional
academic freedom (learning environment) and to avoid violating professors'
academic freedom by excluding them from the code. Nevertheless the U.S.
district court for Eastern Wisconsin found the code unconstitutional primarily
because it regulated speech and was vague (Kors and Silverglate, 1998,
pp. 167-68).

Due process rights are anchored in the Fifth and 14th Amendments of the
Constitution and, over the years, have been separated into categories of
substantive and procedural rights. The former pertains to government abuse of
its power. The latter covers the procedures that are employed to determine
whether an accused person is guilty or innocent. In addition, the Fourth
Amendment protects people from unreasonable search and seizure, such as illegal
room or Internet account searches.

Right to prepare a defense and legal counsel Right to cross examine
witnesses and accusers Right to a public trial or procedure Right to an
impartial trial or procedure.

In a review of 35 instances of speech code enforcement by college and
universities, Kors and Silverglate (1998, pp. 151-178) found the common
denominator of violations involving some or all of these four elements of
procedural due process.

As is the case for free speech, private institutions may find themselves
bound to due process requirements also, not for constitutional reasons but
because they either embrace procedural rights in their literature or establish
a due process procedure, however inadequate (Kors and Silverglate, 1998, p.
296). Two cases in the same state (New York) are illustrative of this issue
and its ambiguity. In 1994, Hofstra University fired a faculty member for
harassment but the New York State Supreme Court reversed the firing because
Hofstra had a procedure that committed the institution to due process (Kors
and Silverglate, 1998, p. 296). In 1999, a New York State appellate court
dismissed a lawsuit against Cornell University, in which a professor
(accused of sexual harassment) alleged that the university's enforcement
of its speech code violated his due process rights, even though the
allegations turned out to be unfounded (Center for Individual Rights
[CIR], 1999).

Privacy

The Fourth Amendment provides the constitutional basis for privacy: "The
right of the people to be secure in their persons, houses, papers, and effects,
against unusual searches and seizures shall not be violated…" Federal laws have
both delineated and eroded student rights, notably the Family Educational Rights
and Privacy Act of 1974 (FERPA), which forbids release of student records
without the student's consent, and the USA/Patriot Act of 2001, which permits
government agencies to require colleges and universities to release student
records without students' consent or even knowledge (ACLU, 2002c). [In addition,
the states vary on privacy rights they guarantee along 21 different components,
such as credit, employment, medical, school records and wiretaps (Electronic
Privacy Information Center, 2002).]

Signed on October 26, 2001 by President Bush, the USA/Patriots Act contains
numerous provisions in response to the September 11, 2001 terrorist attacks, and
remains to be tested in the courts. For students, particularly salient is the
new power given to law enforcement officials to obtain secret orders for release
of information formerly protected under FERPA, purely on the grounds of the
U.S. Attorney General's assertion that the information is needed for a terrorism
investigation (ACLU, 2002c). Furthermore, the Act gives federal authorities the
right to obtain students' personal and academic information that previously was
strictly protected, including campus activities, test scores and financial
records (ACLU, 2000c). For foreign students studying in the U.S. on visas, the
Act gives federal authorities even more access to information, including the
establishment of a national database (ACLU, 2002c).

The Fourth Amendment (public education) and FERPA (public and private schools)
otherwise would appear to protect students from release of information to third
parties, but the U.S. Supreme Court ruled on June 21, 2002, that FERPA does not
include students' right to sue institutions if they released confidential
information (Greenhouse, 2002). The case involved a student at a private
university who sued the school because confidential and inaccurate information
had been released, costing the student a job. The court ruled on the basis of
an individual's right to sue, not the validity of FERPA, so it appears that
Congress could choose to close this loophole in the law. Earlier in 2002, the
ACLU reported that the Nevada public university system sold the names and address
of former students to credit card companies, an apparent violation of FERPA
(ACLU, 2002d).

Another privacy concern is the use of Social Security Numbers as student
identification numbers. This is a prevalent practice in colleges and universities,
and poses threats to students' privacy because of the possibility of identify
theft, easy access by third parties to students' computer accounts, library
privileges and records, grades and other records, and breaking into students'
bank accounts, all of which have occurred (Privacy Rights Clearinghouse [PRC],
2001; Schwartz, 2002). In 1992, a federal district court ruled that Rutgers
University's use of SSNs on class rosters violated students' privacy rights
but Rutgers was granted an exception to FERPA, permitting it to use SSNs as
student identification numbers (PRC, 2001). In July, 2002, news stories
reported that Princeton University had accessed Yale University's web site
to obtain data about students, on the basis of SSNs (Schwartz, 2002).

Privacy on the Internet remains an unresolved issue. On the one hand, anything
posted is likely to be seen by unintended people because most email is insecure.
So, the sender's expectation should be that there is less privacy than with
print mail (AAUP, 1997). Also, the fact that the institution owns the hardware
and manages the network may foster the (unsubstantiated) perception that it
should have some access to the content (AAUP, 1997). In sum, as the Internet
and email have become essential elements for faculty and students, privacy
protections have not followed and need to be addressed (AAUP, 1997).

Summary and Suggestions

The rights of students at public and private colleges and universities,
like civil liberties for many vulnerable populations, are both at risk and in
flux. Some rights are more secure than others. At the administrative level,
there is persuasive evidence that students' rights are abused frequently and the
vast number of violations go unnoticed and unquestioned. When rights violations
are challenged, the results vary by topic area and auspice of the school.

The freedoms of speech, press and assembly are violated most often when students
take unpopular or "politically incorrect" positions, or express themselves in
ways that embarrass the institution. A recent example was at Ohio State
University's June, 2002 commencement exercise when some students turned their
backs on the featured speaker, President Bush, and were ejected by the police
(Bush and Free Speech, 2002). Institutions' procedures for implementing
policies that prohibit offensive speech often violate basic due process
procedures. When these violations are challenged, or even made public, in
the vast majority of cases the college or university backs down or loses in
court. So speech and due process rights, while under threat, tend to be
sustained when asserted.

Privacy rights are articulated well in the U.S. Constitution and
long-standing federal law, but the post-terrorism wave of legislation has
presented serious threats to the rights of students, especially those from
other countries. The courts have not been as supportive of privacy rights as
they have of speech and due process rights. The recent Supreme Court decision
permitting routine drug tests for public school students who wish to
participate in extracurricular activities, while not directed to college
students, indicates how tentative our privacy rights are.

While private schools are not literally subject to constitutional
requirements, the courts have held them to similar standards for other reasons.
Free speech and due process rights do exist for most private college students.
Privacy rights are about as weak in private schools as they are in public
colleges and universities.

The record appears to indicate that colleges and universities need to rethink
speech and behavior codes. Rather than try to ban or control offensive speech,
schools should pursue strategies that bring repugnant ideas out into the open
where they can be challenged intellectually. Besides the fact that thought
control doesn't work, it is also illegal whenever it is subjected to judicial
review.

fighting words or physical behavior "directed at a specific person or
group of persons" and (not "or") is likely to result in violence behavior
or campus demonstrations which "materially" interfere with others' work or
rights, or the operation of the university behavior that threatens to interfere
with an individual's safety or participation in college events

From the review outlined earlier, it appears that the first proposal
would withstand court review but the other two suggestions contain criteria
that are overly ambiguous.

Calleros (1997) developed an approach to objectionable behavior without
sacrificing free speech. He advocated that university administration must
articulate its rejection of bias, discrimination and hatred so that offending
students know they are in opposition to the institution's philosophies, but
that the offenders should not be disciplined for their ideas. Calleros
delineated a curriculum for training university personnel to engage in
constructive conversations with members of the campus community, and for
interacting with offenders without violating their rights. The curriculum
consists of a series of true vignettes involving hate speech and behaviors,
and asks participants to determine constitutionally acceptable responses
within the context of an institution that abhors hate speech. Adoption of
the curriculum might require preparation of group facilitators in
constitutional issues related to campus speech.

Schools should also define and punish acts that target specific individuals or
destroy property, as distinguished from thoughts and words. Given the
consistent record of the courts overturning colleges' and universities'
disciplinary decisions, it appears self evident that schools should adopt
due process standards that are followed in legal proceedings.

For students (and faculty) who encounter speech codes or procedures to
implement them, the best strategy appears to be to go public. According to the
record reviewed here, publicizing these procedures and/or bringing them to
court, where basic protections are more reliable, are effective strategies.

With regard to privacy, these are difficult times. Social Security Numbers
should not be used as student identification numbers. SSNs should not be posted
with grades or used in ways that can jeopardize students' privacy or property.
Other privacy rights are under attack in the post-terrorism reaction period.
The USA/Privacy Act will be tested in the courts, and hopefully many of its
most odious provisions will be overturned. Maybe the best advice for students
is to be careful with their personal information. One protection, developed in
the private sector and recently adopted by the University of Pennsylvania, is
to designate a "chief privacy officer" with responsibility for protecting students'
privacy throughout the campus, including health, financial and admissions-related
data (Schwartz, 2002).

For the most part, the use of Internet resources does not change student
rights. Speech rights are no less protected in email or web access than when
exercised verbally or in print. There are some issues that arise with regard
to the nature of electronic communications but the general guideline is to
avoid violating student rights while accommodating the special circumstances
of the Internet. Privacy on the Internet remains a thorny issue, but colleges
and universities should take steps to protect users' privacy, avoid ambiguous
rules, protect sensitive records from easy access (such as students' transcripts),
involve the full campus community in Internet privacy discussions, and inform
all affected persons when electronic privacy is disrupted in any way
(AAUP, 1997).

References

American Association of University Professors [AAUP] (2002, May). Academic
freedom of individual professors and higher education institutions: The current
landscape. Retrieved June 17, 2002, from www.aaup.org/com-a/aeuben.htm

ACLU (2002b, May 28). Federal court finds University of IL violated rights
of students and faculty in mascot debate. Retrieved June 24 2002, from
http://www.aclu.org/news/2002/n052802d.html

ACLU (2002c, April 10). In the wake of new anti-terror law, NYCLU launches
statewide campaign to inform college students of their rights to privacy of
records. Retrieved June 17, 2002, from
www.aclu.org/news/2002/nyclu_letter_0409.pdf

Calleros, C.R. (1997). Preparing for the worst - and striving for the best:
Training university employees to respond clearly, constructively, and
constitutionally to hateful speech on campus. Journal of Law and Education,
26(4), 41-68.

Privacy Rights Clearinghouse (2001, June 21). College and university privacy
issues: Social Security Numbers and smart cards. Retrieved June 27, 2002, from
www.privacyrights.org/ar/college-privacy.html